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UNIVERSITY OF CALIFORNIA SAN DIEGO 3 1822 01242 8900 j^> %:t •'' »**"'. .*' * \^^.^^! V •' -^N*" ofi ..v^^ ^\^^ .^^ iA*^^ J^£:f2azim£ni of c^ntfixofioCoQU M^ ^nkr£X±ity of (2atifoxnCa <^ \ ? 9 Xot c:/fn^£Ui 24, Catifoxnui ' VILLAGE - COMMUNITIES EAST AND WEST WrrU OTEER LECTUJRES, ADDRESSES, AND ESSAYS B T THE SAME A UTHOR. AKCIENT LAW. Its connections with the Early History of Society, and its Relation to Modern Ideas. 8vo, $3.50. LECTURES ON THE EARLY HISTORY OF INSTITUTIONS. 8vo, $3.50. VILLAGE COMMUNITIES IN THE EAST AND WEST, to which are added other Lectures, Addresses, and Essays. 8vo, $3.50. DISSERTATIONS ON EARLY LAW AND CUSTOM. Chiefly selected from Lectures delivered at Oxford. Svo, $3.50. POPULAR GOVERNMENT: Four Essays. I. Prospects of Popular Government. II. Nature of Democracy. III. Age op Progress. IV. Constitution of the United States. Svo, $3.75. INTERNATIONAL LAW. A Series of Lectures delivered before the University of Cambridge, 1887. 8vo, $3.75. SIR HENRY MAINE. A Brief Memoir of his Life. By the Right Hon. Sir M. E. Grant Duff, G. C.S.I. With some of his Indian Speeches and Minutes Selected and Edited by Whitley Stokes, D.C.L. With Portrait. Svo, $3.50. HENRY HOLT & CO., Publishers, New York. ' VILLAGE - COMMUNITIES EAST AND WEST SIX LECTURES DELIVERED AT OXFORD TO WHICH ARE ADDED OTHEB LECTURES, ADDRESSES AND ESSAYS Sir HENRY SUMNER MAINE K.C.S.I., LL.D., r.K.S. '' AUTHOR OF "ancient LAW" AND "THE EABLT HISTOBY Or INST1IUTION3. NEW YORK HENRY HOLT AND COMPANY 1889 AUTHORS EDITION. PEEFACE TO THE THIKD AND ENLAKGED EDITION. As a Third Edition of the Lectures constituting the volume on 'Village-Communities in the East and West ' is now required, it has been thought desirable to add to them some other Lectm-es, Addresses, and Essays by the author. All of them, except the last, will be found to have a bearing on subjects treated of in the Lectures on Village- Communities, The Rede Lecture, on the ' Effects of Observation of India on Modern European Thought,' has been published separately. The Essays on the ' Theory of Evidence * and on ' Roman Law and Legal Edu- cation' appeared respectively in the Fortnightly Review and in the Cambridge Essays. The three Addresses delivered by the author in the capacity of Vice-Chancellor of the University of Calcutta have not before been printed in this country. London : February 1876. PEEFAOE TO THE FIKST EDITION OF 'VILLAGE-COMMUNITIES IN THE EAST AND WEST.' The Six Lectures which follow were designed as an introduction to a considerably longer Course, of which the object was to point out the importance, in juridical enquiries, of increased attention to the phenomena of usage and legal thought which are observable in the East. The writer had not intended to print these Lectures at present ; but it appeared to a part of his audience that their publication might possibly help to connect two special sets of investi- gations, each of which possesses great interest, but is apparently conducted in ignorance of its bearing on the other. The fragmentary character of the work must be pleaded in excuse for the non-performance of some promises which are given in the text, and for some digressions which, with reference to the main subject of discussion, may appear to be of un- reasonable length. Vm TEEFACE TO THE PIBST EDITION. The eminent German writers whose conclusions are briefly summarised in the Third and Fifth Lectures are comparatively little known in England, and a list of their principal works is given in the Second Appendix. For such knowledge of Indian phenomena as he possesses the writer is much in- debted to the conversation of Lord Lawrence, whose capacity for the political direction of the natives of India was acquired by patient study of their ideas and usages during his early career. The principal statements made in the text concerning the Indian Village -Communities have been submitted to Sir George Campbell, now Lieut.-Governor of Bengal, who has been good enough to say that they coincide in the main with the results of his own experience and observation, which have been very extensive. No general assertions are likely to be true without large qualification of a country so vast as India, but every effort has been made to control the state- ments of each informant by those of others. Some matter has been introduced into the Lectures which, for want of time, was omitted at their de- livery. February 1871. — CONTENTS. LECTURE I. THE EAST, AND THE STUDY OF JUKISPRUDENCB. CJomparative Jurisprudence—Comparative and Historical Methodan- The Past and the Present—Limits of Comparative Jurispru- dence—Method of Comparison—Enquiries of Von Maurer—The Mark and English Law—Eastern and Western Communities— Characteristics of Lidio- Modern Theories of Race—The Patri- archal Family—Barbarous Forms of the Family—Origin of Law in the Family—Village- Community—Law of Nature—Codified Brahminical Law—Feudal System—Conditions of Juridical Study—English Ignorance of India—Disappearance of Indian Phenomena—Influence of Western Ideas—Influence of Physical Science—Influence of British Empire . page 1 LECTURE n. THE SOURCES OF INDIAN LAW. Indian Settlements—Settlement and Revenue Courts—The Civil Courts—The Indian Judicial System—The Supreme Courts English Law in India—Indian Opinion on English Law—^Locality of Custom—The Will of Bengal—Wills and Collective Property —A Modern Indian Will—The Sudder Court—Influence of Sudder Courts—Development of Hindoo Law—Effect of Juridical Com- mentaries—The Bar and English Law—Mahometan Law—The Pundits— Codified Hindoo Law—^Varieties of Native Usage The Written Law—Hindoo Widow's Estate—Preservation of Customary Law—Caste in India-—Tradition—Different Forms of Tradition—Popular Ignorance of Law in England—The Experts and English Law—Indian and Teutonic Village Systems . 3J a —• X CONTENTS LECTURE III. THE WESTERN VILLAGE-COMMUNITI Antiquity of Indian Customary Law—Traditional Law—Analysis of a Law—Indian Conceptions of Law—English Influence on Legal Conceptions—Unwilling Assumption of Sovereignty—In- fluence of Courts of Justice—Change in Nature of Usage Growth of Conception of Eight—Influence of P^nglish Law- Connection of Eastern and Western Custom—Von Maurer— The Teutonic Village-Community—The Arable Mark—English Theories of Land-Law—The Arable Mark in England—Shifting Severalties— The Common Fields—Their Great Extent—Extract from Marshall—Scott on Udal Tenures—Commonty of Lauder Peculiarities of Scottish Example—Vestiges of the Mark, page 65 LECTURE IV. THE EASTERN VILLAGE-COMMUNITY. The Indian Village- Community—Mahometan Theory of Ownership —Land Settlement of Bengal—The Indian Proprietary Unit The Indian Village—The Cultivated Land—The Growth of Custom—Water Rules—The Sources of Primitive Law Customs of Re-partition—The Village—Secrecy of Family Life Dislike of English Criminal Law—Fictions Attending Legislation —Village Rules—Origin of Indian Towns—Indian Capitals—The Village Waste—The Indian Wastes—The Government and the Wastes—The Village Council—Peaceful Character of Population —Hereditary Trades—Remuneration of Village Traders—The Outsiders—^Absorption of Strangers by Community 103 LECTURE V. THE PROCESS OF FEUDALISATION. Feudalism—The Benefices—The Manor—The Manorial Group New Condition of the Waste—Changes in the Grass-lands—The Free Tenants—Settlements of Villeins—The Manorial Courts Encroachments of the Lord—Roman and Feudal Law— Causes of — CONTENTS. SI f eudaiiaation—Growth of Suzerainties—Leading Families—Ele- ments of Feudal System—Systematic Feudalism—Antiquarianism of Indian Politics—Political Results of Settlements—Varioua Forms of Settlement—Growth in Power of Official Holder Mahometan Assumptions—Indian Schools of Opinion—Indian Forms of Property—The Headman—Property Eecognised by the English—Absolute Ownership—^Nature of Eights of Property Development of Absolute Ownership—Vested Rights in India— The Feudalisation of Exirope—Cultivation of Waste-land—Im- provements in Tillage —Village-Communities and Customs Customary Tillage—Servile Dependents of Villagers—^Villages cease to absorb Strangers—Nasse's Work—The Statute of De- vises—Rules for Construing Wills—Restraints on Testamentary Power PAGE 131 LECTURE VL THE EAELY HISTORY OF PRICE AND KENT, Structure o£ Village-Communities—Divisions of the Commimity Property within the Community—Traditions as to Rights—Exac- tions of Indian Sovereigns—Indian Rent—Difficulty of Question —Anglo-Indian Ideas—Customary and Competition Rents—The Protected Tenants—Indian and English Forms of Property—True Character of Prablem—The Irish Clan—Rack-Rent paid by Strangers—^Primitive Notions as to Price—Early Measure of Price—Basis of Political Economy—The Market—Markets and Neutrality—Influence of Market Law—Sentiments adverse to Political Economy—Primitive Commercial Principles—Influ- ence of Carrying Trade—Price and Rent—Market for Land in England—^New Information required—ViUage-Communitiea in America 175 The Effects of Observation of India on Modern Eubopean Thought (Rede Lecture) 203 Address to University of Calcutta, I. , 240 Address to University of Calcutta, II. • « - 25| —— 2U1 CONTENTS. Address to Univebsitt of Calcutta, IIL • • paox 275 The Theory of Evidence 295 KouAN Law and Legal Education •• • • . 330 Appendices : L Minute recorded on October 1, 1868 . 387 II.—Eecent German Works bearing on the SUBJECT of the LECTURES ON VlLLAGE- COMMUNITIES 393 Note A. •.•••••• 399 Indss •»•»•«. «»t 403 VILLAGE -COMMUNITIES IN THE EAST AND WEST. LECTURE I. THE EAST, AND THE STUDY OF JUEISPRUDENCE. B — CONTENTS. Comparative Jurisprudence—Comparative and Historical Methods The Past and the Present—Limits of Comparative Jurisprudence —Method of Comparison—Enquiries of Von Maurer—The Mark and English Law—Eastern and Western Communities—Charac- teristics of Indio-Modern Theories of Race—The Patriarchal Family—Barbarous Forms of the Family—Origin of Law in the Family—Village-Community—Law of Nature—Codified Brah- minical Law—Feudal System—Conditions of Juridical Study English Ignorance of India—Disappearance of Indian Phenomena —Influence of Western Ideas—Influence of Physical Science Influence of British Empire.

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